SALIM GUL SHEIKH, MEMBER - This appeal assails the impugned order dated 30.6.2004 whereby major penalty of dismissal from service has been imposed on the Appellant under the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter to be referred as R.S.O., .2000). He was served show-cause notice vide order, dated 17.5.2004 wherein he was charged with gross misconduct. He submitted his defence reply, which appears to be undated, in which he denied the charges conveyed to him .Through the statement of allegations. His reply having been found as not satisfactory, resulted in the passing of the impugned order, His representation dated 13.7,2004 remains undecided and he has come before us appeal on 22.10.2004 after the lapse of stipulated time.
2. The facts relevant-to this case are that the appellant, a contract employee of WAPDA, was serving as Lines Superintendent-I, LESCO, Okara when disciplinary proceedings were initiated against him under sub-section (4) of Section 5 of the Removal from Service (Special Powers) Ordinance, 2000 on grounds of gross misconduct. The charges conveyed to him in the statement of allegations through the show-cause notice were:-- .
3. Deputy Manager Operation Division Renala, directed you to attend meeting on 12.3.2004, alongwith recovery position of CP-112 & CP- 114, but you fail to attend the said meeting deliberately.
4. You are advised by A.M.O./D.M.O. To disconnect the connection of Motorway Police, due to dead defaulter consumer of Rs. 1,96,000/-but you fail to do so.
5. You were also duty bound to lodge F.I.R against stolen of WAPDA Material on Chuchak Feeder (being Incharge of feeder) but you fail to do so.
6. Line losses of Chuchak Feeder increased 1 during the month of 2/2004, as compared with losses of 2/2003 due to your sickness and inefficiency:--- ' _____________________________________________________________________________________________________ S.NO Name of Freeder 2/2004 2003 Increase 1 Chuchak (Month) 24.9% 21.9% 3% (Progs.) 33.3% 30.4% 2.9% ______________________________________________________________________________________________________
3. In his defence reply, the appellant denied all four allegations. The competent authority, however, finding his reply as not satisfactory, imposed the punishment of dismissal of service after -providing him an opportunity of personal hearing.
4. The learned counsel for the appellant addressing the issue of maintainability argued that although the appellant-was a contractual employee but his services were not terminated as per the terms and conditions of his contract. On the contrary, he was dismissed from service on the grounds of misconduct under the Removal from Service (Special Powers) Ordinance, ,2000. Therefore his appeal is maintainable before this Tribunal. He placed reliance on the judgments in the cases reported in 2006 TD (Ser) 298; 2002 SCMR 1930 and PLJ 2001 Pesh. 173-DB.
5. He next contended that the charges against the appellant could not be established conclusively because he had provided sufficient documentary evidence in his defence, In his point to point rebuttal of the allegations levelled against the Appellant, the learned counsel denied the first allegation that he deliberately did not attend the meeting chaired by the Deputy Manager Operation. He explained that the appellant first attended an "open Court" at Akhtarabad Mosque, the place of his posting, and thereafter to attend to the matter relating to the theft of equipment on priority basis. But before attending to these matters, he had provided brief of the meeting to the Deputy Manager. The Appellant however admitted to arriving half an hour late for the meeting, which, according to him, was due to circumstances beyond his control. Replying to the next charge (at serial No. 4), the learned counsel stated that the electricity of Motorway Police was not disconnected as the default amount had been converted into instalments by the Deputy Manager himself. As such the question of disconnecting the supply did not arise. The third charge against the appellant related to negligence in lodging F.I.R, in connection with stolen WAPDA property. The learned counsel maintained that the charge was without foundation because the F.I.R, had been duly lodged by the appellant. The final charge against the Appellant related to increased line losses in his defence, the learned counsel stated that 30778 units in the detection proforma dated 18.2.2004 could not be fed into, the computer in time and its impact was reflected in the statement showing higher percentage of losses. He also stated that new connections added during , the intervening year also led to excess. He therefore prayed that the penalty imposed upon the appellant was unwarranted and consequently liable to be set aside.
6. The learned counsel for the respondents, on the other hand, .Vehemently argued that the appeal was not maintainable before the Tribunal in terms of Section 2(1 )(b) of the Civil Servants Act, 1973 which categorically states that contractual, employees were not deemed to be civil servants and therefore such employees could not approach Tribunal for the redressal of their grievance. He contended that the. Disciplinary proceedings against the Appellant were conducted within four walls of the Prescribed law. He further contended that the competent authority had exercised the discretion to waive the request in view of documentary evidence and as such the decision to adopt the shorter version was neither arbitrary nor illegal because the appellant was duly informed about it through the show-cause notice. The learned counsel forcefully argued that the Appellant was directly responsible for 03% line losses which were a "huge rip-off' which could not be condoned or even over-looked under any circumstances.
7. We have heard the arguments from both sides and have also carefully perused the record available with us.
8. Before going into the merit of this appeal, it is pertinent to first discuss the question of maintainability which has been raised, by the respondents' side, It is their contention that the appellant being a contractual employee cannot come before this Tribunal because he is not a civil servant within the meaning of Section 2(1 )(b) of the Civil Servants Act, 1973 and therefore should knock at the door of the Court of general jurisdiction for the redressal of his grievance, if any. The other side, however, repels this argument insisting that the only avenue available to the Appellant for redressal of his grievance is before this Tribunal. He has cited various authorities in Support of his argument. After having perused the material, we are inclined to accept the latter position on two grounds. Firstly, the appellant has been dismissed from service on the charge of misconduct. He is not aggrieved at the termination of his contract, It is not denied that the appellant was appointed for a period of one year on 16.3.2002 and his services were extended, It has also been stated at the bar that the services of his colleagues, similarly appointed, have been regularized in 2006, 2007 and 2008. It can therefore be concluded that the -appellant would have been entitled similarly treated had the impugned action not been taken against him. In our view the matter of maintainability has been clearly addressed in the case reported in PLJ 2001 Pesh. 173 (DB). In this case, it has been held by their lordship that:- "However, had it been a simple termination without allegation in that case petitioners had no case and their services could be terminated safely without notice. But it is a case of termination on serious charges, it involves career, future prospect of petitioners, impugned termination order is a stigma on their career, service record which can affect their future career in long run, they are young, they have to struggle for existence and survival for considerable time. So such drastic and serious charge was subject to proof under Clause 7 .Of agreement and under N.-W.F.P., Government Servants (Efficiency and Discipline) Rules, 1973 procedure wag to be applied for as respondents themselves accepted and borrowed procedure given thereto in clause-7 of agreement meant for an . Allegation of absent from duty. Order must be reasonable, fair, just and not arbitrary."
9. Equally important is the fact that the action has been taken against the Appellant under R.S.0.-2000 which can only be heard competently by this Tribunal in view of our judgment in the case of Hassan Akhtar v. WAPDA, reported in SBLR 2008 (Tr)
133. We therefore are not inclined to accept the respondent's view on the question of maintainability.
10. Coming to the merit of the case, it is not disputed that the competent authority has exercised his discretion to waive the requirement of regular departmental inquiry under Section 5, sub-section (4) of the Removal from Service (Special Powers) Ordinance, 2O0O. In the case of Abdul Sattar v.
WAPDA and 2- others (PLJ 2007 SC 54) the Hon'ble Supreme Court held that it. Was well-settled principle of law that in the. Normal circumstances, a case of misconduct involving controversial question of fact must not be decided in summary manner as the dispensation of regular inquiry in such a case would amount to defeating the law and condemning a person unheard. The Hon'ble Supreme Court further held that the discretionary powers to dispense regular inquiry should be exercised in exceptional circumstances and not as a general rule in every case, as the exercise of the power of dispensation of regular inquiry in a case involving factual controversy is against the spirit or law and the concept of substantial justice. Their lordship further held that, the departmental authorities are certainly not required to follow the procedure of the regular Courts and observe the technicalities of law for determining the question of guilt or innocence of a person but the fair and reasonable opportunity or hearing to enable a person to make his defence is an inalienable right of a person facing a charge of misconduct. Proper inquiry is therefore essential in factual controversy. ,
11. In view of the fore-going discussion, we have no hesitation in reaching the .Conclusion that the impugned order dated 30.6.2004 cannot be sustained. We therefore set aside impugned and order the re-instatement of the appellant into service with consequential back benefits. The respondent department is however free to initiate disciplinary action against the appellant, if it so desires, under the prescribed rules. Such proceedings, if held, shall be completed within the period of. 4 months from the date of the receipt of this judgment. The matter of back benefits will depend on the outcome of fresh proceedings.
12. No order to costs. Parties be informed accordingly.